concurring. Being bound by the decision in the case of Mitchell v. State, 41 Ga. 527, we concur in the judgment; but as that case is under review, we think it should be overruled. Neither the reasoning of Chief J ustice Lochrane in that case, nor that of Mr. J ustice Little in the present case, is, in our opinion, sufficient to support the-conclusions reached by them. The statute declares that, “ On the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten; and such words and language may or may hot amount to a justification, according to the nature- and extent of the battery, all of which shall be determined by the .jury.” 'Penal Code, § 103. The evident purpose of the-General Assembly in making this provision was to entirely abrogate the common-law rule, which recognized no such defense, and to give to the jury in such cases very wide latitude in determining whether words and language of the character described should, in the case under consideration, justify the assault or-the beating, as the case may be. Each case was to be passed upon by the jury according to its peculiar facts. If the words, were uttered in the presence of the accused, the jury were to determine whether they were of a character calculated to provoke an assault, and if so, whether, the beating which followed was. *693“ in its nature and extent ” disproportioned to the insult given. If the words were not uttered in the presence of the accused, the jury were to determine whether the assault made on account of such words was, under all the circumstances, a sufficient justification of the beating administered, taking into consideration the character of the words or language, the lapse of time between their utterance and the beating, the efforts made by the accused to ascertain whether the words were really uttered, all the circumstances attending the beating, and the “ nature and extent ” of the same. If the words or language were written or printed and not communicated to the accused by the person assaulted, the jury were to be allowed to pass upon the case, taking into consideration all the circumstances, as in cases where words not spoken in the presence of the accused are relied upon to justify the assault. Such was, we believe, the intention of the General Assembly; and in order to limit the statute in its application to cases of spoken words uttered in the presence of the accused, it is necessary to read into it words which are not there found, and which, when read into the statute, give it a meaning directly antagonistic to the plain and manifest legislative intention derived from the language of the statute as it stands. The purpose of the law was, of course, not to encourage or license the crimes of assault or assault and battery, but it was to deter the vituperator, the slanderer and the libeler, and impress upon such lawless characters the fact that, under certain circumstances, the law, taking into consideration the weakness of human nature, would not hold the person wronged by them responsible wdien the beating administered was not disproportioned to the provocation given in the words or language, whether oral, written or printed, and whether used in the presence of the accused or otherwise. The effect of the decision in the Mitchell case being to prevent the application of the statute in cases where it was clearly intended to be applicable, we think that decision should be overruled and the statute allowed to become operative.